BEFORE THE LIQUOR CONTROL COMMISSION
1 OF THE STATE OF OREGON
2 In the Matter of the ) FINAL
Agency Agreement ) FINDINGS OF FACT,
3 Regarding: ) CONCLUSIONS OF LAW,
) AND ORDER
4 Peter Graepel )
AGENCY NO. 193 ) OLCC-98-RO-001
5 460 Coburg Road )
Eugene, Oregon 97401 )
6
7 A hearing was held in the above matter on June 4, 1998, in
8 Eugene, Oregon, before Administrative Law Judge Susan C. Hall. The
9 Commission was not represented by legal counsel. The Agent was
10 represented by Michael Mills, attorney at law. The record remained
11 open until June 12, 1998, for the Merchandising Division and the Agent
12 to submit written closing arguments.
13 A Proposed Order was issued July 30, 1998. Agent's attorney
14 filed Exceptions to the Proposed Order on August 11, 1998.
15 On September 15, 1998, the Commission considered the record of
16 the hearing, the applicable law, the Proposed Order of the
17 Administrative Law Judge, and Exceptions to the Proposed Order of the
18 Administrative Law Judge. Based on this review and the preponderance
19 of the evidence, the Commission enters the following:
20 WITNESSES
FOR THE COMMISSION: Victor Mann, Darlene Barton, and Rick
21 Ripley.
22 FOR THE AGENT: Shirley Gall and Peter Graepel.
23
24 / / / / /
25 / / / / /
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1 / / / / /
2 ISSUES
3 I. Whether the Agent violated ORS 471.410(2) because his
4 employee knowingly sold alcoholic liquor to a person under the age of
5 21 years.
6 II. If a violation occurred, whether the sanction recommended by
7 the Merchandising Division is appropriate.
8 I. SALE TO A MINOR
(2) No one other than the person's parent or
9 guardian shall sell, give or otherwise make
available any alcoholic liquor to a person under
10 the age of 21 years. A person violates this
subsection who sells, gives or otherwise makes
11 available alcoholic liquor to a person with the
knowledge that the person to whom the liquor is
12 made available will violate this subsection.
ORS 471.410(2).
13
14 Findings of Fact
15 1. Peter Graepel has been a Retail Sales Agent at Agency
16 No. 193, 460 Coburg Road, Eugene, Oregon, at all times relevant to the
17 Findings of Fact below. Mr. Graepel became an Agent at this location
18 in June 1985. Mr. Graepel has been an OLCC Agent since 1969.
19 2. On March 18, 1998, the Merchandising Division sent the Agent
20 a Notice of Violation alleging that he had violated the Retail Sales
21 Agent Agreement, paragraphs 22(e) and 23 because on August 6, 1997,
22 his employee sold alcoholic liquor to a minor in violation of
23 ORS 471.410(2).
24 3. On August 6, 1997, Shirley Gall was on duty as a clerk in
25 Agency 193. Ms. Gall is an employee of the Agent.
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1 / / / / /
2 / / / / /
3 4. At approximately 6:10 p.m., employee Gall sold an alcoholic
4 liquor, vodka, to Darlene Barton.
5 5. Minor Barton was born on October 5, 1976 (10/5/76). She was
6 20 years old at the time of the sale. Minor Barton reasonably
7 appeared to be her true age due to her youthful facial features.
8 6. Employee Gall asked minor Barton for identification prior to
9 making the sale. Employee Gall compared the photograph on the
10 identification to minor Barton's appearance. Employee Gall misread
11 minor Barton's identification so that she believed that the date of
12 birth was January 5, 1976 (1/5/76). She mistakenly believed the
13 identification showed that minor Barton was over 21 years of age.
14 7. Employee Gall was not the parent or guardian of minor
15 Barton.
16 8. Minor Barton was a police cadet with the Eugene Police
17 Department. At the time of the incident, she was taking part in a
18 minor decoy operation designed to determine if alcoholic beverage
19 outlets would sell alcoholic beverages to minors.
20 Discussion
21 The Agent argues that the charge should be dismissed because of
22 the following:
a. The minor decoy committed crimes in
23 misrepresenting her age and in purchasing
alcoholic beverages; and
24
b. The Asting@ operation by the Eugene Police
25 Department was not conducted according to OLCC
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guidelines and the Agent did not meet the
1 Merchandising Division criteria for conducting
stings.
2
3 / / / / /
4 a. Crimes Committed by Minor Decoy
5 The Agent argues that the minor decoy misrepresented her age when
6 she entered a business where minors are not permitted and she
7 presented herself at the sales counter and requested an alcoholic
8 beverage. The Agent argues that there were signs both inside and
9 outside of the business indicating that minors were not allowed.
10 Any crimes committed by the minor decoy in entering the business
11 prohibited to minors and in purchasing an alcoholic beverage are not a
12 defense to a charge of selling alcoholic beverages to minors. The
13 charge will not be dismissed on this basis.
14 b. Sting Did Not Comply With OLCC Guidelines
15 The Agent argues that the charge should be dismissed because the
16 Eugene Police Department did not comply with OLCC Merchandising
17 Division guidelines in conducting the sting operation and because the
18 Agent did not meet the OLCC referral criteria for conducting stings in
19 OLCC agencies. The record indicates that there were no known problems
20 with sales of alcoholic beverages to minors at this location.
21 There is nothing in the record to indicate the Commission will
22 decline to find a violation when police agencies do not follow OLCC
23 guidelines in conducting stings or when the police agencies select
24 sting targets that do not fit the OLCC referral criteria. The charges
25 will not be dismissed on this basis.
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1 Conclusions of Law
2 ORS 471.410(2) provides that no one other than a person’s parent
3 or guardian shall sell, give, or otherwise make available any
4 alcoholic liquor to a person under the age of 21 years. The
5 Commission has previously determined that violations of ORS 471.410(2)
6 are violations of the Retail Sales Agent Agreement. OLCC Agency No.
7 193, OLCC-89-RO-002, January 1992.
8 The requirement of knowledge is satisfied when there are
9 reasonable grounds to believe that the purchaser of alcoholic liquor
10 is under the age of 21 years. Plaid Pantry Inc. v. OLCC, 16 Or App
11 199 202 517 P2d 1192 (1974). The Commission has applied an objective
12 standard to determine if there are reasonable grounds to believe a
13 person is a minor. The test is how old a person would appear to be to
14 an objective, impartial observer. David Littlejohn, OLCC-85-V-076,
15 September 1986.
16 At the time that employee Gall sold an alcoholic beverage to
17 minor Barton on August 6, 1997, minor Barton objectively appeared to
18 be under the age of 21 years. Employee Gall had reasonable grounds to
19 believe that minor Barton was under 21 years of age. Employee Gall
20 did ask for and examine minor Barton's identification. Nevertheless,
21 employee Gall misread the identification and completed the sale
22 despite the fact that the identification showed that minor Barton was
23 under 21 years of age.
24 The Commission concludes that employee Gall knowingly violated
25 ORS 471.410(2).
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1 II. PENALTY
(22) TERMINATION FOR CAUSE BY COMMISSION. The
2 Commission may terminate this agreement for good
cause, which includes but is not limited to, any
3 of the following:
4 . . . . .
5 (e) Agent commits a violation of any term of
this agreement, or any applicable Oregon statute,
6 or applicable rule, or any policy or procedure
contained in the retail operations manual, after
7 having received two written notices of violation
from the Commission within a 36 month period.
8 Notices of violation will be sent as provided in
paragraph 23;
9
. . . . .
10
(23) NOTICE OF VIOLATION. If the Agent has
11 committed a violation described in paragraph 22 e
or f, the Commission will send a notice of
12 violation to be sent by certified mail, return
receipt requested or personal delivery. The
13 Agent may request a hearing within 14 days after
receipt of the notice of violation. If a hearing
14 is requested, a notice of violation shall become
final only after such a hearing and determination
15 by the Commissioners, acting on the record, that
the notice of violation was proper. A notice of
16 violation shall contain language advising the
Agent of the basis for the notice and of the
17 right to a hearing under Oregon Law. (Retail
Sales Agent Agreement.)
18
19
Findings of Fact
20
9. The Commission has considered the above Findings of Fact
21
with regard to this issue.
22
10. The Merchandising Division recommends that the Agent be
23
sanctioned by receiving a Notice of Violation, as described in
24
paragraph 22(e) and 23 of the Retail Sales Agent Agreement.
25
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1 11. The Agent has not had any Notices of Violation prior to the
2 violation in this case at this location.
3 12. The Agent has posted OLCC signs both inside and outside the
4 agency notifying the public that minors are prohibited.
5 / / / / /
6 / / / / /
7 13. Agent has placed a sign at the register telling potential
8 patrons that if they were born after this date 21 years previously,
9 the Agency will not sell liquor to them.
10 14. The Agent has held store-wide meetings regarding checking
11 identification and false identification.
12 15. The Agent has purchased a large magnifying glass to help
13 himself and his employees in examining identification closely.
14 16. The Agent and his employees have confiscated false or
15 improperly used identification from potential patrons.
16 17. After the violation, the Agent asked OLCC personnel for a
17 "refresher course" in checking identification. At the time of the
18 hearing, this had not yet been rescheduled.
19 Conclusions of Law
20 Paragraphs 22(e) and 23 of the Retail Sales Agent Agreement
21 provide that if the Agent has committed a violation of any applicable
22 statute or rule, the appropriate sanction is for the Commission to
23 issue a Notice of Violation to the Agent.
24 As set forth above, Agent's employee violated ORS 471.410(2) as a
25 result of the August 6, 1997, incident. The Agent is responsible for
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1 this violation.
2 The Commission concludes that an appropriate sanction is that the
3 Agent receive a Notice of Violation.
4 ULTIMATE CONCLUSIONS OF LAW
5 The Agent violated ORS 471.410(2) because the Agent's employee
6 knowingly sold alcoholic liquor to a minor on August 6, 1997.
7 / / / / /
8 The Agent should receive one Notice of Violation pursuant to
9 paragraphs 22(e) and 23 of the Retail Sales Agent Agreement.
10 FINAL ORDER
11 The Commission orders that Agent Peter Graepel, Agency No. 193,
12 460 Coburg Road, Eugene, Oregon, receive one Notice of Violation for
13 the August 6, 1997, violation of ORS 471.410(2).
14 It is further ordered that notice of this action, including the
15 reasons for it, be given.
16 Dated this 24th day of September, 1998.
17
18 /s/ Pamela S. Erickson
Pamela S. Erickson
19 Administrator
OREGON LIQUOR CONTROL COMMISSION
20
Mailed this 24th day of September, 1998.
21
THIS ORDER IS EFFECTIVE 10 DAYS AFTER THE MAILING DATE.
22
NOTICE: You are entitled to judicial review of this Order. Judicial
23 review may be obtained by filing a petition for judicial
review within 60 days from the service of this Order.
24 Judicial review is pursuant to the provisions of ORS Chapter
183.
25
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